In re Avandia Mktg., Sales Practices and Products
| Citation | 624 F.Supp.2d 396 |
| Decision Date | 25 February 2009 |
| Docket Number | MDL No. 2:08-cv-01733.,MDL No. 2:08-cv-01726.,MDL No. 2:08-cv-00835.,MDL No. 2:08-cv-04981.,MDL No. 07-md-1871.,MDL No. 2:08-cv-01731.,MDL No. 2:08-cv-04235.,MDL No. 2:08-cv-05116.,MDL No. 2:08-cv-05019.,MDL No. 1871.,MDL No. 2:08-cv-02943.,MDL No. 2:08-cv-01981.,MDL No. 2:08-cv-01729.,MDL No. 2:08-cv-01732.,MDL No. 2:08-cv-01727.,MDL No. 2:08-cv-01728.,MDL No. 2:08-cv-01730.,MDL No. 2:08-cv-02884.,MDL No. 2:08-cv-05227. |
| Parties | In Re: AVANDIA MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION. This Document Relates to: Ayala-Castro, et al. v. GlaxoSmithKline, et al. Bone, et al. v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, et al. Boone v. GlaxoSmithKline, et al. Bowles, et al. v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, et al. Cross, et al. v. GlaxoSmithKline, et al. Fisher v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, et al. Hall v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, et al. Hefner, et al. v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, et al. Jefferson v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, et al. Johnson, et al. v. GlaxoSmithKline, et al. Khanna v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, et al. Massey, et al. v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, et al. Mick v. GlaxoSmithKline PLC, et al. Mitchell, et al. v. GlaxoSmithKline, et al. Thornton v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, et al. Upshaw v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, et al. Williams, et al. v. GlaxoSmithKline, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Lowell W. Finson, Robert F. Clarke, Phillips & Associates, Phoenix, AZ, for Ayala-Castro, Johnson and Mitchell.
Alan Jay Lazarus, Drinker Biddle & Reath LLP, San Francisco, CA, Nina M. Gussack, Pepper Hamilton LLP, Philadelphia, PA, for GlaxoSmithKline.
Krista L. Cosner, Drinker Biddle & Reath LLP, Donald F. Zimmer, Jr., King & Spalding, San Francisco, CA, for GlaxoSmithKline and SmithKline Beecham Corp. d/b/a GlaxoSmithKline.
Frederick W. Rom, Womble Caryle Sandridge & Rice, Reserach Triangle Park, NC, Nina M. Gussack, Pepper Hamilton LLP, Philadelphia, PA, for SmithKline Beecham Corp. d/b/a GlaxoSmithKline.
Richard P. Kinnan, Walter J. Lack, Engstrom Lipscomb & Lack, Thomas V. Girardi, Girardi & Keese, Los Angeles, CA, for Boone.
Charles W. Davis, The Miller Firm, LLC, Orange, VA, for Ayala-Castro, Bone, Boone, Bowles, Cross, Fisher, Hall, Hefner, Jefferson, Khanna, Massey, Mitchell, Thornton and Upshaw.
David Christian Andersen, Michael J. Miller, The Miller Firm, LLC, Orange, VA, Michael Miller, Miller & Associates, Alexandria, VA, for Bone, Bowles, Fisher, Hall, Hefner, Thornton and Upshaw.
Brian S. Kabateck, Richard L. Kellner, Kabateck Brown Kellner LLP, Bahar Dejban, James Martin Kenna, Shawn Khorrami, Khorrami Pollard & Abir LLP, Los Angeles, CA, for Cross and Williams.
Cynthia Brown, Mark E. Burton, Jr., Nancy Hersh, Hersh & Hersh, Rachel Abrams, Levin Simes Kaiser & Gornick LLP, San Francisco, CA, for Khanna.
Brandon Lee Evans, The Miller Firm LLC, Orange, VA, for Massey.
Theresa M. Walsh, Brown Chiari, LLP, Lancaster, NY, for Mick.
The seventeen above-captioned individual actions have been transferred to a multidistrict litigation ("MDL") docket established1 to consolidate, for purposes of coordinated pretrial proceedings, cases in federal court that "arise from allegations that certain diabetes drugs manufactured by [Defendant SmithKlineBeecham Corp. d/b/a GlaxoSmithKline ("GSK")]—Avandia and/or two sister drugs containing Avandia (Avandamet and Avandaryl)2—cause an increased risk of heart attack and other physical injury, and that GSK failed to provide adequate warnings concerning that risk."3 Hundreds of actions have been transferred or filed directly into this MDL since its creation. Plaintiffs in the seventeen above-captioned cases bring strictly state law claims against GSK and other defendants. Each action was filed in state court, removed to federal court by GSK on an assertion of diversity jurisdiction, and with the exception of one action, federal question jurisdiction as well,4 and then transferred to this MDL. Prior to transfer, a motion to remand was filed in each action in the transferor federal district court. After transfer, each such motion was re-filed or re-noticed here. These seventeen remand Motions are presently before the Court. For the reasons that follow, fifteen Motions will be granted and two denied.
The Court heard oral argument as to all but one of the instant Motions on September 26, 2008.5 Briefing on the Motions is complete, including supplemental briefing permitted after oral argument. The parties' arguments in each of the cases at issue are reviewed below.
This action was originally filed in the Superior Court of the State of California for the County of San Bernadino by sixteen individual plaintiffs grouped in eight husband-and-wife couples. All Plaintiff couples bring identical state law claims. Ayala-Castro and her husband are citizens of California. No other Plaintiff is a citizen of either California or Pennsylvania.
The named Defendants are GSK and McKesson Corporation ("McKesson").6 GSK is a pharmaceutical developer and manufacturer incorporated under Pennsylvania law with its principal place of business in Pennsylvania, and McKesson is a Delaware Corporation engaged in drug distribution with its principal place of business in California. After accepting service of process, GSK and McKesson removed the action to the United States District Court for the Central District of California, Eastern Division—Riverside, on May 7, 2008, claiming both diversity and federal question jurisdiction.7 The action was transferred from that court to this MDL on October 14, 2008.
In their Motion, Plaintiffs argue the case must be remanded pursuant to 28 U.S.C. § 1447(c) for lack of subject matter jurisdiction. In particular, they argue that their claims do not implicate sufficiently substantial questions of federal law to support federal question jurisdiction and that there is not complete diversity of citizenship between the parties because McKesson is a California citizen. They also argue removal is prohibited by the "forum defendant rule" of 28 U.S.C. § 1441(b), which bars removal premised on diversity jurisdiction if any "properly joined and served" defendant is a citizen of the forum state, as McKesson is here.
GSK counters that federal question jurisdiction exists over this action because Plaintiffs' exclusively state law claims raise substantial questions of federal law. Referring to one of the counts of the Complaint, GSK asserts that "the principal federal issue . . . is whether a plaintiff can recover against McKesson for negligent failure to warn where federal law clearly prohibits the distributor from altering the manufacturer's label."8 McKesson aside, GSK also asserts that federal question jurisdiction exists because Plaintiffs' claims require the Court to construe and apply the Federal Food, Drug and Cosmetic Act ("FDCA")9 and its implementing regulations. There is at least one such claim in the Complaint.10
With respect to diversity jurisdiction, GSK acknowledges, as it must, that McKesson is a California citizen, as are two of the plaintiffs. However, GSK argues that the citizenship of McKesson must be disregarded because it was fraudulently joined as a defendant. GSK asserts that McKesson's joinder was both factually and legally fraudulent—factually because certain early evidence shows that specific Plaintiffs in cases filed in California state court did not receive Avandia distributed by McKesson, and legally because California law does not allow liability for drug distributors under the causes of action asserted by Plaintiffs. GSK argues Plaintiffs' naming of McKesson as a defendant was a sham designed to thwart federal jurisdiction. If McKesson's citizenship is so ignored, complete diversity exists among the parties. Defendants also contend that the forum defendant rule does not require remand, asserting that McKesson's citizenship is to be ignored in this analysis as well because of its purportedly fraudulent joinder. As a third argument, GSK asserts that Plaintiffs are fraudulently misjoined, and that their claims should be severed and considered separately as a result.
In this action, originally filed in the Superior Court of the State of California for the County of San Francisco, eleven unrelated Plaintiffs bring identical state law claims against GSK and McKesson. One plaintiff, Jesus Cota ("Cota"), is a California citizen, and another, Barron Gatta ("Gatta"), is a Pennsylvania citizen. The citizenship of two other Plaintiffs also bears noting, that of Laviola Townsend of Illinois, and Dorothy Bone of Alabama.
After both Defendants were served, GSK removed the action to the United States District Court for the Northern District of California, San Francisco Division on November 20, 2007, claiming both federal question and diversity jurisdiction. McKesson consented to removal. The action was subsequently transferred from that court and filed in this MDL on April 11, 2008.
Plaintiffs move for remand on the ground that subject matter jurisdiction is lacking. They contend that because Cota and McKesson are both citizens of California, and Gatta and GSK are both citizens of Pennsylvania, diversity of citizenship is doubly defeated. Also, for the reasons reviewed in the Ayala-Castro case summary, above, Plaintiffs argue that the forum defendant rule bars removal and that federal question jurisdiction does not lie.
GSK opposes remand, arguing that federal question jurisdiction exists as to all Plaintiffs, and that diversity jurisdiction exists as to all Plaintiffs except Gatta. Its arguments with respect to federal...
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